953 F.2d 724 (1st Cir. 1992), 91-1590, Phantom Touring, Inc. v. Affiliated Publications

Docket Nº:91-1590, 91-1741.
Citation:953 F.2d 724
Party Name:PHANTOM TOURING, INC., Plaintiff, Appellant, v. AFFILIATED PUBLICATIONS, et al., Defendants, Appellees.
Case Date:January 10, 1992
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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953 F.2d 724 (1st Cir. 1992)

PHANTOM TOURING, INC., Plaintiff, Appellant,


AFFILIATED PUBLICATIONS, et al., Defendants, Appellees.

Nos. 91-1590, 91-1741.

United States Court of Appeals, First Circuit

January 10, 1992

Heard Nov. 4, 1991.

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Ronald D. Barber with whom H. Yale Gutnick, Strassburger, McKenna, Gutnick & Potter, Pittsburgh, Pa., Dennis J. Kelly, and Burns & Levinson, Boston, Mass., were on brief, for plaintiff, appellant.

E. Susan Garsh with whom Jonathan M. Albano, Lisa A. Eichhorn, and Bingham, Dana & Gould, Boston, Mass., were on brief, for defendants, appellees.

Before BREYER, Chief Judge, COFFIN, Senior Circuit Judge, and SELYA, Circuit Judge.

COFFIN, Senior Circuit Judge.

Appellant Phantom Touring Company produces a musical-comedy version of "The Phantom of the Opera" that is not the hugely successful, widely acclaimed Broadway show later created by Andrew Lloyd Webber. In a series of articles published in late 1989, the Boston Globe queried, in a disparaging tone, whether appellant's advertising made the distinction between the two "Phantoms" clear to the ticket-buying public. Appellant sued for defamation, 1 claiming that the newspaper falsely accused it of a deliberate effort to pass off its show--dubbed the "Fake Phantom"--as "the real thing." The district court dismissed the complaint on the ground that the articles contained only statements of opinion protected by the First Amendment. We agree that none of the articles is actionable and, therefore, affirm.

I. Background 2

The original "Phantom of the Opera" is a 1911 novel by Gaston Leroux, which is now in the public domain and therefore available for adaptation by anyone who chooses to make use of it. Appellant's version, a musical comedy show featuring the music of several classical composers, was created by British playwright Ken Hill and performed publicly for the first time in 1977 at the Duke's Playhouse in England. In 1984, the Hill production again was staged in England, where Andrew Lloyd Webber saw it. Webber and Hill began negotiations to bring the show to London's West End, but

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nothing ever came of the collaboration. Instead, Webber wrote and, in October 1986, opened his own "Phantom" in London. The Webber production, a drama with an original musical score, became what the Globe termed a "megahit." In January 1988, Webber's "Phantom" opened in New York.

Meanwhile, in July 1986, Hill's "Phantom" was revived for a short run in St. Louis. It attracted the attention of Jonathon Reinis, a theatre producer, who brought the show to San Francisco for a nine-month run beginning in September 1988. Buoyed by the show's success in San Francisco, Reinis and others formed the appellant Phantom Touring Company to take the show on a national tour that included a visit to the Wang Center in Boston.

In September 1989, about a week before tickets for Hill's "Phantom" at the Wang were to go on sale, the Globe published the first of a number of articles suggesting that ticket buyers should be wary of Hill's "Fake Phantom." According to the article, headlined "The phantom of 'The Phantom,' " Hill had been "thriving off the confusion created by the two productions." The article quoted a drama critic for The Washington Post who said Hill's version " 'bears as much resemblance to its celebrated counterpart as Jell-O does to Baked Alaska,' " and who further described the show as " 'a rip-off, a fraud, a scandal, a snake-oil job.' "

This story and at least one other that followed not only pointed out that Hill was benefiting from mistaken identity, but also suggested that the confusion was intentional. The newspaper observed that the show was being advertised in bold type as "The Original London Stage Musical." While technically accurate, since Hill's production in fact predated Webber's, the notice appeared to the Globe to be drawing heavily on the reputation of the Webber show.

Appellant filed suit in November 1989, alleging that the Globe articles contained false and defamatory statements and innuendo concerning Phantom Touring. 3 The complaint referred to numerous specific phrases and words in the articles as well as to an alleged underlying message that the plaintiff was dishonest and intentionally misleading or cheating the public.

Defendants moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) and, in a brief order written on the face of the motion, the district court ruled for the Globe. It explained its decision as follows:

I have carefully examined the publications and conclude that in context they contain only protected expression of opinion and do not imply criminal conduct on the part of the plaintiffs.

Appellant unsuccessfully moved for reconsideration and, following the Supreme Court's decision in Milkovich v. Lorain Journal Co., --- U.S. ----, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990), which clarified the principles governing the First Amendment's protection of statements of opinion, urged the district judge to vacate its ruling. The district court denied appellant's motion, holding, without discussion, that "the judgment should stand even in the light of Milkovich."

In this appeal, Phantom Touring contends that the district court's decision reflects the erroneous view that all of the disputed statements in the Globe articles were privileged under the First Amendment simply because they could be classified as opinion. Appellant argues that a careful analysis of the articles, in light of the principles set out in Milkovich, demonstrates that it is entitled to jury consideration of its libel claim. In the next section, we describe briefly how Milkovich affected defamation law and why application of the principles expressed in that opinion require us to affirm the district court's judgment.

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II. Discussion

  1. Legal Framework 4

    In Milkovich, the Supreme Court dismissed the notion that there is a "wholesale defamation exemption for anything that might be labeled 'opinion'." 110 S.Ct. at 2705. It concluded that the relevant question is not whether challenged language may be described as an opinion, but whether it reasonably would be understood to declare or imply provable assertions of fact. See id. at 2707.

    Notwithstanding its rejection of a specific "opinion" privilege, the Court assured that opinions about matters of public concern would continue to receive substantial constitutional protection under various extant First Amendment principles. It reaffirmed three propositions which are relevant to our consideration of this case in its present posture. The first, of "[f]oremost" importance, is the principle established in Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986), that statements made by a media defendant "must be provable as false" before there can be defamation liability. 110 S.Ct. at 2706. The Court reaffirmed that "Hepps ensures that a statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection." Id. (footnote omitted). Thus, a statement such as, "That's the worst play I've ever seen," would be protected not because it is labeled an opinion but because it is so subjective that it is not "susceptible of being proved true or false," id. at 2707.

    Secondly, Milkovich emphasized a line of cases establishing protection for statements that "cannot 'reasonably [be] interpreted as stating actual facts' about an individual," 110 S.Ct. at 2706 (quoting Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50, 108 S.Ct. 876, 878, 99 L.Ed.2d 41 (1988) (involving ad parody)). See also Letter Carriers v. Austin, 418 U.S. 264, 284-86, 94 S.Ct. 2770, 2781-82, 41 L.Ed.2d 745 (1974) (use of the word "traitor" not basis for defamation action since used "in a loose, figurative sense"); Greenbelt Cooperative Publishing Ass'n, Inc. v. Bresler, 398 U.S. 6, 14, 90 S.Ct. 1537, 1541, 26 L.Ed.2d 6 (1970) (the word "blackmail" not actionable in context). These cases explicitly protect "rhetorical hyperbole" and other types of "imaginative expression" that writers use to enliven their prose. 110 S.Ct. at 2706. For example, a theater critic who wrote that, "The producer who decided to charge admission for that show is committing highway robbery," would be immune from liability because no reasonable listener would understand the speaker to be accusing the producer of the actual crime of robbery.

    In addition to considering whether the challenged speech contained "loose, figurative, or hyperbolic language which would negate the impression" that a factual statement was being made, id. at 2707, the Court also indicated that the context in which language appears must be evaluated to see whether "the general tenor of the article negate[s] this impression," id. Thus, while eschewing the fact/opinion terminology, Milkovich did not depart from the multi-factored analysis that had been employed for some time by lower courts seeking to distinguish between actionable fact and nonactionable opinion. See, e.g., McCabe v. Rattiner, 814 F.2d 839, 842 (1st Cir.1987) (adopting totality of the circumstances analysis); Ollman v. Evans, 750 F.2d 970, 974-75 (D.C.Cir.1984) (en banc) (same).

    Finally, the Court referred to what we would characterize as a safety valve determination, in which we are obliged to " 'make an independent examination of the whole record,' " Milkovich, 110 S.Ct. at 2705 (quoting Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 1958, 80 L.Ed.2d 502 (1984) (quotation omitted)), to "assur[e]

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    that the foregoing determinations will be made in a manner so as not to 'constitute a forbidden intrusion o[n] the field of free...

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